Central Administrative Tribunal - Delhi
Chandra Veer Jeriya vs Union Of India on 20 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2596/2008
MA No. 1069/2009
New Delhi, this the 20th day of January, 2010
HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN
HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A)
Chandra Veer Jeriya,
S/o Raghu Nath Singh Jeriya,
R/o 228, Sarojini Nagar,
New Delhi-110023 Applicant
(By Advocate: Shri Padma Kumar S.)
Versus
1. Union of India
Through its Secretary,
Ministry of Home Affairs,
South Block, New Delhi
2. The Director General,
Central Reserve Police Force,
CGO Complex, Lodhi Road,
New Delhi Respondents
(By Advocate: Shri Rajender Nischal)
ORDER
Mr. L.K.Joshi, Vice Chairman (A) The Applicant, who is serving under the second Respondent, i.e., the Director General, Central Reserve Police Force (CRPF), is aggrieved by the fact that one Shri M.L. Yadav, who is junior to him is getting higher pay and the Applicants representation for stepping up of pay to the level of his junior has been rejected by the Respondents by communication dated 4.07.2008, placed at page 45 of the paper book. The representation has been rejected on the ground that the official junior to the Applicant had opted for combatisation whereas the Applicant had not opted for the same and the junior getting higher pay as combatised staff, would not give the Applicant any ground for seeking stepping up of his pay.
2. The facts of the case, in nuce, are that the Applicant was appointed as Lower Division Clerk (LDC) (Ministerial Cadre) in CRPF on 15.09.1971. He was promoted to various grades from LDC to UDC and further to Head Clerk, Office Superintendent and Administrative/ Section Officer. He was promoted to the last post of Administrative/ Section Officer in the pay scale of Rs.6500-10500/- with effect from 25.09.1996. On promotion to this grade, his pay was fixed at Rs.6500/- per month whereas the pay of his immediate junior Shri M.L. Yadav was fixed at Rs.7500/- per month.
3. The background leading to such anomaly would show that the non-gazetted ministerial posts in CRPF were combatised on optional basis by an order dated 28.02.1981. The Applicant did not give his option for combatisation. The non-combatised staff continued to be called LDC, UDC, Head Clerk and Office Superintendent. Equivalent ranks on combatisation became Assistant Sub-Inspector (Ministerial), Sub-Inspector (Ministerial), Inspector (Ministerial) and Subedar Major (Ministerial), respectively. Thereafter the promotion from both combatised as well as non-combatised sides was to the post of Administrative/ Section Officer, Joint Assistant Director and Assistant Director. The OM dated 28.02.1981 issued by the first Respondent, Ministry of Home Affairs, also provided that the options once exercised would be final and those who did not opt for combatisation, would continue in civil posts until superannuation. Consequent upon implementation of the fourth Central Pay Commission (IV CPC) recommendations the combatised ministerial staff were granted the rank pay at par with the executive cadre by the first Respondents letters dated 11.06.1987 and 16.03.1988 with effect from 1.01.1986. This benefit was not given to the non-combatised ministerial staff. Because of this, a difference in pay of combatised and non-combatised staff emerged, which is demonstrated by the table given below:
Pay scale w.e.f. 01.01.1986 Rank (Civilian) IV pay commission pay scale Equivalent combatised staff IVth pay Commission pay scale LDC 950-1500 ASI 1320-2040 UDC 1200-2040 SI 1400-2300 Head Clerk 1400-2600 Inspr. 1640-2900 Office Supdt 1600-2660 Sub. Major 2000-3200 The pay scales after the recommendations of the V CPC also continued this difference in salary as seen from the following table:
Pay scale w.e.f. 01.01.1996 Rank (Civilian) V pay commission pay scale Equivalent combatised staff Vth pay Commission pay scale LDC 3050-4590 ASI 4000-6000 w.e.f. 01.01.1996 UDC 4000-6000 SI 5000-8000 w.e.f. 01.01.1996 5500-9000 w.e.f. 10.10.1997 Head Clerk 5000-8000 Inspr. 5500-9000 w.e.f. 01.01.1996 6500-10500 w.e.f. 10.10.1997 Office Supdt 5500-9000 Sub. Major 6500-10500 w.e.f. 01.01.1996 6500-10500 + Appointment Pay Rs.200/- w.e.f. 10.10.1997
4. The Applicant who had continued to get the same pay as the combatised staff upto the IV Pay Commission, started getting lesser salary as a result of the aforesaid difference in pay when Shri M.L. Yadav, who was working as Subedar Major (Ministerial) was promoted to Administrative Officer/Section Officer. He was placed in higher pay scale than was given to the Applicant who was promoted to the non-combatised side to the same post of Administrative Officer/ Section Officer. It may also be mentioned that the V CPC had recommended that one more opportunity could be given to the non-combatised civil employees to opt for combatised cadre. However, this recommendation was not accepted by the first Respondent, i.e., the Ministry of Home Affairs.
5. The learned counsel for the Applicant has brought to our notice the memorandum submitted by the CRPF to the IV CPC, which, inter alia, stated that the combatised as well as the non-combatised staff were performing the same duties. This is not being disputed by the Respondents. Relevant part of the memorandum is reproduced below:
(v) Ministerial Staff (Non Combatised) 156 Ministerial hands did not opt for combatisation and still continue to remain in the civil posts as before. They perform identical duties as are done by the combatised ministerial hands. We, therefore, recommend that their pay scales may be so revised as to bring the same at par with the pay scales to be adopted for their counterparts in the combatised Ministerial cadre on the principle of equal pay for equal work.
6. The V CPC also recommended in paragraph 46.24 of its report that the non-combatised personnel should be given another opportunity to opt for combatisation. The recommendations of the V CPC in this case, which is conceded by the Respondents also, reads thus:
46.24 In the year 1981, all civil ministerial posts in CRPF were combatised, and civil employees were given the option to switch over to the combatised cadre. Some of these personnel did not opt for uniformed cadre which has now resulted in their getting lower pay scales as compared to those who opted. These employees, who are about 96 in number, have requested that they be given one more chance to opt for the combatised cadres, as their juniors, who had then opted for combatised cadre, are placed in higher pay scales. We recommend that one more chance should be given to these civil employees to opt for combatised cadre provided they are willing to abide by all conditions of training and consequential responsibilities.
7. The learned counsel would contend that the first Respondent-Ministry of Home Affairs did not give any reasons for not accepting this recommendation of the V CPC except stating that the matter had been considered in consultation with the Ministry of Finance. He has pointed to paragraph 3 of the letter dated 10.05.2000 of the Ministry of Home Affairs addressed to the second Respondent, placed at pages 82 to 83 of the paper book, wherein it has been stated that It has, however, not been found possible to accept the recommendations. He would contend that this can hardly be called application of mind to the issue regarding removal of the anomaly. The learned counsel would further contend that at the time of exercising the option, the Applicant had considered the terms and conditions of the Respondents for combatisation, which mentioned that the combatised and the non-combatised staff would hold equal grades and would get equal pay. The Applicant, therefore, did not consider it beneficial to exercise option for the combatised post. He would contend that both the combatised as well as the non-combatised officials continue to perform the same duties and responsibilities. In this context, advertence has been made to the letter dated 28.02.1981 regarding the policy of combatisation in which it is clearly mentioned in the condition a (ii) that both the streams would be governed by the existing eligibility conditions provided in the extant Recruitment Rules for recruitment/ appointment, seniority and promotions. The aforesaid letter is placed at pages 73-74 of the paper book. Advertence has also been made to the Standing Order No.1/81 (1/81-Adm) dated 11.03.1981 (Annex R-6). It is mentioned in paragraph 4 of the Standing Order as to what kind of training would be given to the combatised cadre. The paragraph reads thus:
4. Training It shall not be necessary to give to the combatised Ministerial Staff as intensive an outdoor training as is done in the case of G.D. personnel. However, certain basics on putting on uniform correctly, smart bearing, saluting and use of fire arms should be inculcated.
Of course, the main stress in training should continue to be in office procedure, rules and regulations and Accounts work in the CRPF. In the meantime, all Units will give two periods of basic training commensurate with their job requirements in uniform to the combatised personnel for eight weeks. In order to ensure uniformity, details of the training to be imparted will follow. It is contended, therefore, that the combatised staff was not put to such arduous and difficult work as to be given an edge in pay forever over the non-combatised staff. It is also pointed out that in the same letter, it is mentioned that the uniform would be issued to the non-combatised staff and they would get all the washing and maintenance allowance etc. In paragraph 7, regarding duty of the staff, it is clearly stated that [N]ormally combatisation should not change their range and gamut of duties in the ordinary course. Of course, what should be done in a grave emergency is entirely a matter in the discretion of the officer in control. By and large the duties presently being performed by the Ministerial staff will continue to be performed in future.
8. The learned counsel has further brought to our notice the notes recorded by the concerned officers of the second Respondent regarding representation of the Applicant for stepping up of his pay to the level of Shri M.L. Yadav, an official junior to him. The note sheet has been placed at Annex R-3 of the counter affidavit. It is pointed out that in the aforesaid note, a case of Shri K.N. Pandey has been mentioned, which is identical with the case of the Applicant. The said Shri Pandey had also requested for stepping up of his pay at par with his junior Shri Nityanand. It is recorded in the note that Though one of the condition for stepping up of pay that scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical was not satisfied in that case even then MHA and DOP&T had permitted to step up of the pay by ignoring the above condition. He would contend that the second Respondent had made a reference to the first Respondent-MHA who, without any justification, rejected the representation of the Applicant. The learned counsel would also contend that under FR 9 (31) (c) also, the Applicant would be eligible for stepping up of the pay in the post of Administrative/ Section Officer. FR 9 (31) (c) is reproduced below:
(c) A post is said to be on the same time-scale as another post on a time-scale if the two time-scales are identical and the posts fall within a cadre, or a class in a cadre, such cadre or class having been created in order to fill all posts involving duties of approximately the same character or degree of responsibility, in a service or establishment or group of establishments, so that the pay of the holder of any particular post is determined by his position in the cadre or class and not by the fact that he holds that post.
9. It is urged that the situation in the CRPF is so obviously absurd that the senior person who is in the scale of Rs.5500-9000/- is classified as Group `C whereas his subordinate, whose work is being scrutinized by the former, is classified as Group `B and is placed in the pay scale of Rs.6500-10500/-. He would further mention that this anomaly would arise because the seniority list of the combatised and non-combatised personnel is maintained commonly. A copy of the seniority list has been placed from pages 138 to 161 of the paper book. This anomaly could be easily resolved by applying provisions of FR 9 (31) (c).
10. In support of his claim, the Applicant has placed reliance on judgements of the Honourable Supreme Court in Union of India and others Vs. P. Jagdish and others, (1997) 3 SCC 176 and Punjab State Electricity Board and others Vs. Gurmail Singh, (2008) 2 SCC (L&S) 539. Reliance has also been placed on the orders of this Tribunal in Anil Chandra Das and another Vs. Union of India and others, (1988) 7 ATC 224, Anil Chandra Das and another Vs. Union of India and others, (1988) 7 ATC 224, N. Lalitha (Smt) and others Vs. Union of India and others, (1992) 19 ATC 569 and K. Krishna Pillai and others Vs. Union of India and others, (1994) 26 ATC 64.
11. The Respondents have contested the cause of the Applicant by filing a counter affidavit. It is mentioned that on combatisation, incumbents of ministerial posts would be governed by the CRPF Act and Rules, subject, inter alia, to the following condition:
d) All other concessions and benefits presently available and as may be given from time to time to the members of the Force shall be equally applicable to the combatised ranks. It is stated that on the implementation of the IV CPC recommendations, the combatised ministerial staff were granted the rank pay at par with the executive cadre by the first Respondent with effect from 1.01.1986. That is how, it is explained by the learned counsel for the Respondents that the difference in pay has emerged. The learned counsel would also contend that the Decision No. 23 below FR-22 provides the condition under which pay of senior on promotion can be stepped up at par with the pay of the junior. The conditions are as follows:
(a) Both the junior and senior officers should belong to the same Cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of FR-22 (I) (a) (1). For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. He would contend that the Applicant does not satisfy condition (b) because the scales of pay of non-combatised and those of combatised staff were different. The learned counsel also drew our attention to the note sheet at Annex R-3, already adverted to above, in which the case of the Applicant for stepping up of pay has been examined. It is stated that the matter was examined in detail in the aforesaid note sheet and it has been noted thus:
thus one of the condition laid down for stepping up of pay that scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical is not fulfilled.
12. The learned counsel for the Respondents would further submit that the Applicant came from the non-combatised stream to the post of Administrative Officer/ Section Officer with lower pay scales with effect from 1.01.1986, whereas Shri M.L. Yadav was promoted from the combatised stream with higher pay scales with effect from the same date. The learned counsel has pointed out that in paragraph 5.16 of the counter affidavit the difference between the duties and responsibilities of the combatised and non-combatised ministerial staff has been given. Paragraph 5.16 of the counter affidavit is reproduced below:
5.16 It is a fact that both the combatised and non-combatised ministerial staff constitutes a single cadre and are governed by the same set of Recruitment Rules. But the combatised ministerial staff has to wear uniform, put under basic training, bound to undergo musketry training and annual range classification firing. They are governed under CRPF Act and Rules. They have to maintain shape-1 medical category for gaining promotion. Non-Gazetted combatised ministerial staff retire, on superannuation, at the age of 57 years whereas non-combatised M/ Staff (NGOs) retire at the age of 60 years. Rule 9 (31) (c) stipulates that the pay of an employee be determined with reference to his position in the cadre. The petitioner retained the non-combatised posts and therefore he has been allowed corresponding pay scales applicable to these posts/ positions. The applicant was promoted from the rank of Office Supdt (SOP of Rs. 5500-175-9000) to Adm Officer (SOP Rs. 6500200-10500) whereas reported junior was promoted from Subedar Major/ Ministerial (SOP of Rs. 6500-200-10500) to Adm Officer (SOP Rs. 6500-200-10500) and thus one of the conditions laid down for stepping up of pay that scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical is not fulfilled and the petitioner is not entitled for stepping up of pay at par with the pay of reported junior i.e. Shri M.L. Yadav, AO and other. It is also vehemently denied that FR 9 (31) (c) would be applicable in the instant case. The learned counsel would contend that this would not apply because the Applicant and Shri M.L. Yadav came from different pay scales to the post of Administrative Officer/Section Officer.
13. The learned counsel for the Applicant in his reply has strenuously urged that the Respondents have only undertaken a laboured exercise to show the difference between the combatised and non-combatised ministerial staff. He would contend that the reading of the Standing Order No.1/81 of 11.03.1981, already adverted to in the preceding paragraphs, would show that there is just a marginal difference of the combatised ministerial staff having to put uniform which they get free, washing allowance, ration money, free accommodation and enhanced EL. There is no difference in the work performed by combatised as well as non-combatised stream. The non-combatised ministerial staff also get posted to highly sensitive areas and undergo the same difficulties as the combatised staff in the performance of their duties.
14. We have considered the rival contentions and have perused the record with great care.
15. From the perusal of the record, it clearly emerges that the combatised and non-combatised staff were confined to the rank of LDC to Office Superintendent with corresponding rank of ASI to Subedar Major. Thereafter the promotion is to common posts of Administrative Officer/Section Officer. The Applicant and Shri M.L.Yadav, who is junior to him, were in the same scale up to 1.01.1986. While the former was in the combatised stream, the latter was in non-combatised stream. It was only on the ground of rank pay to combatised grade that their scales were enhanced. We had considered an identical case in OA No.1763/2007 decided on 4.02.2008 , Smt. Santosh Kumari Goel Vs. GNCT of Delhi and others. In this case, the applicant Smt. Santosh Kumari Goel was appointed as primary teacher on 14.11.1981 in the pay scale of Rs. 330-560, which was revised from 1.01.1986 to Rs. 1200-2040 and from 1.01.1996 to Rs.4500-7000. The said Smt. Santosh Kumari Goel was promoted to the post of Trained Graduate Teacher (TGT) after 11 years of service on 23.04.1992 in the pay scale of Rs.1400-2600, subsequently revised to Rs.5500-9000. Her junior, one Ms. Archana Aggarwal was appointed primary teacher on 24.02.1982 in the identical scale as that of Smt. Santosh Kumari Goel. Ms. Archana Aggarwal was not promoted to the grade of TGT up to the 12th year of service. There was a rule at the relevant time that every teacher who had rendered 12 years of service without getting promoted would be eligible for senior scale of primary teacher, which was the same as the entry scale of TGT. Owing to this, Ms. Archana Aggarwal was given senior scale of Rs.1400-2600, after completing 12 years of service on 24.02.1994. She was promoted to the scale of TGT on 22.04.1997, when the scale had been revised to Rs.5500-9000. Her salary was fixed at Rs.6500/- on her promotion to TGT, while Smt. Santosh Kumari Goel, her senior was drawing Rs.6200/- at this time, which was two stages below her junior Ms. Archana Aggarwal. In this case also, the representation of Smt. Santosh Kumari Goel for stepping up of her pay was rejected on the same ground that she and her junior Ms. Archana Aggarwal were not in the same scale in the lower grade and hence her pay could not be stepped up in view of Decision No.23 under FR 22, already mentioned in preceding paragraph. In this case, the Tribunal held that the Respondents had wrongly interpreted the Decision No.23 under FR 22. It was held that the scale of pay in lower and higher posts in which the Applicant in the OA and her junior were entitled to draw pay, were identical, on the ground that senior scale was only a special dispensation. It was held that it was not a normal scale of the post. In the instant case also, the rank pay is a special dispensation for the combatised staff. It is not a normal scale of the post. In this context, advertence may be made to the judgement of the Honourable Supreme Court quoted in the aforesaid OA No.1763/2007 in Calcutta Municipal Corporation and another Vs. Sujit Baran Mukherjee and others etc., JT 1997 (3) SC 210. The facts in Sujit Baran Mukherjee & Ors. (cited supra) are recounted briefly as follows. Sujit Baran Mukherjee, Tapan Kumar Paul, Shankar Bose and some others were appointed as copyists in the Municipal Corporation of Calcutta in the same scale. Their inter se seniority was determined on the basis of their respective date of birth. Shankar Bose was junior to Tapan Kumar Paul and Sujit Baran Mukherjee. Shankar Bose was transferred to Secretariat Department, where, because of arduous nature of work, he was given special pay of Rs.50/- per month. Consequent to the revision in pay scale, the pay of Sujit Baran Mukherjee, Tapan Kumar Paul and others was revised. The special pay of Rs.50/- paid to Shankar Bose got merged with his pay in the revised pay scales. As a result he started getting higher pay than his seniors. Under Regulation 34-A of the Municipal Corporation of Calcutta the following provision existed:
If an employee on his promotion to a higher post draws pay at a higher rate than his senior employee due to fixation of his pay in the higher post under the normal rules, of due to revision of pay scales, the pay of the employee senior to him shall be fixed at the same stage and from the same date his junior draws the higher rate of pay irrespective of whether the lien in the lower post held buy the senior employee is terminated at the time of refixation of pay subject to the conditions that both the senior and junior employee belong to the same cadre and same pay scale of the post in which they have been promoted are also identical.
The benefit of this Regulation shall not be admissible in case where junior employee exercises his option to retain unrevised scale of pay. Tapan Paul, Sujit Baran Mukherjee and others filed a Writ Petition in the High Court of Calcutta for stepping up their pay on par with their junior. The Writ Petition was allowed by the High Court. The pay of Tapan Paul, Sujit Baran Mukherjee was stepped up. It was, however, withdrawn on realization by the Municipal Corporation that it was not in conformity with Regulation 34-A, quoted above. The corporation filed an application in the High Court for clarification. The High Court dismissed the application for clarification. Municipal Corporation preferred an appeal before the Supreme Court, which held as follows in its judgment:
6. A reading thereof would clearly indicate that the principle of stepping up of the pay would arise only when a junior employee, on his promotion, is drawing higher pay than his seniors; in that case, they would be entitled to the stepping up of the pay so as to be on par with him on the principle that the persons who are similarly situated and are drawing the same scale of pay and are doing the same duty and being senior to the persons drawing higher pay, are entitled to have their pay stepped up but that principle is inapplicable to the situation, as in the present case, where a junior person on transfer to a different place is being paid extra payment by way of special pay or overtime pay, whatsoever the nomenclature be and would be treated to be a special pay since he has to discharge the duty outside his normal duty or due to special circumstances. Such a fortuitous circumstance would not be a ground for other seniors to claim parity of pay by stepping up of their scale of pay. If the contention is given acceptance, the extra salary would become payable to persons who do not take pains and do the normal work while staying in a convenient post/place with indolence where as the person who undertakes special responsibility or puts up hard work would be put on a par; and stepping up of pay would be a premium on laziness and indolence. It would be deleterious to augmentation of efficiency in service or dedication to duty. Under those circumstances, we think that the statutory principle of stepping up of the pay so as to be on par with the junior would be not on rational principle. When all of them discharge the same duties and are under the same responsibility and not in different circumstances and if the juniors draw higher pay on promotion, the seniors who do not get the opportunity would be entitled to parity of pay with their juniors. (emphasis added)
16. In the instant case both the combatised as well as the non-combatised ministerial staff are discharging the same duties, as has been stated by the Respondent MHA in its memorandum to the IV CPC, advertence to which has already been made in paragraph 5 above. The circumstances are also not different. The laboured attempt of the Respondent to show the difference between the combatised and non-combatised personnel does not cut much ice. Basically the work performed by both combatised and non-combatised stream is the same. This can also be seen from the reading of the Standing Order No.1/81, to which detailed advertence has been made earlier. The rank pay is only confined to the period when the personnel in ministerial staff are in combatised stream. The Applicant is not claiming that there may be a parity even when the Applicant was in non-combatised stream and his junior Sh. Yadav was in combatised stream. However, once both come to the grade of Administrative Officer/Section Officer, the rank pay is no longer applicable. Therefore, at this stage, there is every justification for stepping up of the pay of the Applicant. In this context, a reference to FR-27 may also be made, which reads thus:
F.R. 27. Subject to any general or special orders that may be made by the President in this behalf, an authority may grant a premature increment to a Government servant on a time-scale of pay, if it has power to create a post in the same cadre on the same scale of pay.
17. The pay of the Applicant could be stepped up under the provisions of FR-27. We have already seen that the Respondents have misinterpreted the provisions of Decision No.23 under FR 22. The scales of pay of lower and higher posts in case of combatised and non-combatised staff are identical except that the combatised personnel had a special dispensation of rank pay.
18. We have considered the judgements cited on behalf of the Applicant. However, on careful perusal, we find that these judgements are distinguishable in the facts and circumstances and would, therefore, not apply in the instant case.
19. However, on the basis of above analysis and the ratio laid down by the Honourable Supreme Court in Calcutta Municipal Corporation (supra), the Applicant is eligible for stepping up of his pay to the level of the pay being drawn by his junior Shri M.L. Yadav. The order dated 4.07.2008 of the Respondent is quashed and set aside. The Respondents are directed to step up the pay of the Applicant in the grade of Administrative Officer/ Section Officer to the same level as that of his junior Shri M.L. Yadav from the same date from which Shri Yadav started getting that scale. This direction would be complied with within three months from the date of receipt of a certified copy of the present order. No costs.
( L.K. Joshi ) ( V.K. Bali )
Vice Chairman (A) Chairman
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